Introduction^[1]

For several consecutive issues of the Federal Bar Council Quarterly, I intend to report on efforts of different federal judges to effect reforms in the criminal justice system. In Judge Jed Rakoff’s 2021 book, “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System,” he wrote:

In many respects, the people of the United States can be proud of the progress we have made over the past half century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?^[2]

In May, I attended a program organized by Judge Richard Berman on Supervised Release, Diversion and Alternatives to Incarceration Programs. As a result, I was motivated to self-commit to a continuing column on the general subject. First, I will focus on the continuing efforts of Connecticut District Judge Stefan Underhill, highlighted in an article earlier in this issue. 

Judge Underhill’s Writing and Approach to Criminal Justice^[3] 

How I Learned of ACEs 

In 2019, Judge Underhill invited me to attend one of the monthly meetings of the Bridgeport Reentry Roundtable held in Bridgeport, Connecticut, detention facility. I heard a guest speaker there address the approximately 60 attendees as to the implications of the Adverse Childhood Experiences Study (ACEs). The study was conducted by the Centers for Disease Control and Kaiser Permanente in 1998. In the ACEs study, over 17,000 adult participants were given a 10 question “test” as to the trauma they may have experienced as children.

The ACEs questionnaire included questions about abuse, neglect, and dysfunction, for example, including whether:

(1) a person’s parents were separated or divorced; 

(2) a household member had gone to prison; and 

(3) a household member was an alcoholic or user of street drugs. 

The higher the ACEs score, the more likely that the young child’s normal brain development of, for instance, “emotional regulation,” and “paying attention,” was diverted to “fight or flight” survival techniques. Thus, the study concluded that an individual’s brain chemistry probably would be altered substantially and detrimentally by childhood trauma. A score of six ACEs leads, among other things, to a probability of the person living 20 years less than average and to increased risks of diabetes and obesity. ACEs informed practices such as collaborative problem solving exercises can mitigate the effects of toxic stress and for instance, increase resilience. It has been stated that ACEs are the root causes of incarceration and the best place to start for suitable measurable change.

I wrote in 2019, that, “in limited research, I found no awareness of ACEs in any American criminal justice system.” In 2026, the awareness and insight into the ACEs issues I learned of in 2019 are now becoming more widespread throughout the country. 

Judge Underhill’s Approach 

Judge Underhill has written that:

True justice requires that defendants be treated as individuals, that their conduct, background, and attitude be evaluate individually and in context, and that sentences be meted out one by one. . . . 

[T]he principal actors in the federal criminal justice system can improve sentencing fairness for most federal defendants, day in and day out. Prosecutors, probation officers, judges, and others can bring about meaningful sentencing reform simply by doing their jobs differently. [P]ractical sentencing reforms . . . will not help every defendant, but they can help tens of thousands each year.

Support Court 

The program seeks to “Positively Influence Participants Who Struggle With Drug Addiction and Alcohol Addiction.” Its purposes are as follows:

[To]connect participants with treatment, employment, educational resources, and pro-social organizations in the community. The Support Court Judge will address participants’ behavior through meaningful incentives and timely sanctions. 

The Team, recognizing the nature of substance addiction, will treat participants with dignity and respect, to promote a rehabilitative atmosphere that empowers participants to lead law-abiding lives. . . . 

Our Support Court program is a supervised, comprehensive treatment program for substance abusers under federal pretrial and post-conviction supervision. The program combines the efforts of the U.S. District Court, the U.S. Attorney’s Office, the Federal Defender’s Office, community treatment providers, and community support groups. This voluntary program involves weekly attendance in Support Court meetings before the Support Court Judge and Support Court Team, community supervision, substance abuse treatment counseling, random drug testing, and pro-social community activities, such as attending meetings of Alcoholics Anonymous, Narcotics Anonymous, or other secular or faith-based group. 

The programs length, determined by each participant’s individual progress, will be at least one year. If you are eligible and choose to participate in this program, you must be willing to commit to the entire program. For post-conviction participants, should you successfully complete the Support Court requirements and conditions, you may be eligible for up to one year off your term of supervision. For pretrial participants, the Court may take your success participation in Support Court into consideration in your criminal case.

Release and Rehabilitation 

In a 2024 article titled, “Supervised Release Needs Rehabilitation,” in the Virginia Journal of Criminal Law, the judge wrote that: 

Supervised release was intended to facilitate rehabilitation and reentry of persons released from prison. As implemented, however, supervised release has served as an efficient means to reincarcerate at least 10,000 people each year. The U.S. Sentencing Guidelines foster mass reincarceration through “mandatory,” “standard,” and “special” conditions of supervised release that impose burdens on supervisees. The Guidelines recommend a prison sentence for every violation, no matter how trivial. Indeed, at least 83 percent of violation prison sentences are imposed for technical violations, such as not reporting to a probation officer, not for new criminal conduct. . . . 

Reincarceration for even a short term interrupts and impedes an ex-inmate’s progress toward rehabilitation. When returned to prison, a person loses employment, housing, and access to substance abuse treatment. Nothing could be more disruptive of efforts to rehabilitate. Both public safety and rehabilitation are best served by imposing supervised release less often, for shorter terms, and by modifying conditions or terminating supervised release for those who violate their conditions.

Closing the Back Door

Also, in May 2024, Judge Underhill wrote in “Closing the Back Door to Federal Prison,” where he stated in part as follows:

When can defendants face a felony-term of imprisonment and not be accorded the right to indictment, the right to jury trial, the requirement of proof beyond a reasonable doubt, and the right to confront adverse witnesses? The obvious answer is when they enter federal prison through the back door, that is, by violating a condition of supervised release. Over 15,000 persons are sent to federal prison through the back door every year. It is up to defense counsel (and judges) to close that back door and restore fundamental protections of the Bill of Rights. . . . 

[N]early every federal supervised release violation proceeding should give rise to the full panoply of criminal procedural rights. Because almost every federal supervised release violation carries a potential penalty of more than one year in prison, supervisees enjoy a right to indictment for the charged violation of supervised release. Any proceeding to which the right to indictment attaches constitutes a prosecution for purposes of the Sixth Amendment, so unless they are waived, the full complement of criminal procedural rights must apply. Moreover, the Double Jeopardy clause of the Fifth Amendment precludes treating the conduct that underlies a supervised release sentence as additional punishment for the original offense of conviction. 

Judge Berman’s Conference 

At the May conference, extensive write ups on the programs of several districts were circulated. The conference represents a growing awareness of the needs and advances in the American criminal justice system, as criticized by Judge Rakoff. The table of contents circulated at the conference describes a number of the initiatives in the Second Circuit. Judge Berman’s 46 page report on Court Supervised Release describes a program carried out under his supervision for people released after having been sentenced by him.

Conclusion

The efforts of the different districts represent wonderful advances over what I was aware of in 2019. Perhaps, for example, a circuit-wide conference can be initiated.

[1] All who are willing to help by offering contributions, by making suggestions, or, who have critiques, please reach out to pete@eikenberrylaw.com.

[2] Jed S. Rakoff, “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System,” 17-18 (2021) (emphasis supplied).

[3] Stefan R. Underhill, Everyday Sentencing Reform, 87 UMKC L. REV. 159, 159 (2018); Stefan R. Underhill, Closing the Back Door to Federal Prison, The Champion, May 2024, at 44; Stefan R. Underhill, J., Supervised Release Needs Rehabilitation, 10 Va. J. Crim. L. 1, 3 (2024); Stefan R. Underhill & Grace E. Powell, Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution, 108 VA. L. REV. ONLINE 297, 305 (2022) (outlining the rehabilitative purpose of supervised release).